This Article is written by AYUSHI GOYAL | MANAV RACHNA UNIVERSITY | BBA LLB. (H) 3rd YEAR during her internship at LEDROIT INDIA
SCOPE OF ARTICLE
The main concept of writing this article is to have a deep analysis of doctrine of originality, including its evolution history in pertinence of the “Sweat of the Brow” and “Modicum of Creativity” tests. This is analyzed with the help of judicial precedents and interpretations in consonance with comparing the two tests.
KEY WORDS
- Infringement
- Originality
- Sweat and Brow
- Modicum of Creativity
- Intellectual Property Right
- Copyright
ABSTRACT
As per section 13(1)(a) of The Copyright Act, 1957, talks about the word “original”, which states that any doing of work, whether artistic, musical or architecture exclusively undergoes copyright. And the infringement should not be made in such a sense that it spontaneously abrogates the basicity of the work. The basis of this doctrine is to protect the fundamental principles of an individual to eliminate the matter of replica. This doctrine has evolved from time to time and from place to place in different judicial cases. It transformed the traditional UK approach of “Sweat of Brow” into a modern US approach of “Modicum of Creativity”. Such transformation has impacted Indian judiciary to implement this principle in India.
INTRODUCTION
The concept of copyright acts as a shield to avoid exemplified copy of any work which safeguards the ownership and integrity of the work. The principle of originality is not explicitly defined anywhere, but it just mentioned in the copyright act, 1957. The main idea behind this doctrine was to highlight the labour and creativity in a particular work and for that matter to protect such work from replica. The institution of this doctrine was first seen in the UK in a judicial dispute. Then in US and subsequently in India.
EVOLUTION OF ORIGINALITY
This doctrine was established in Eastern Book Vs DB Modak case in India, and a shift could be seen in shifting from traditional to the modern approach by the Indian judiciary. In this case, the plaintiff stated that the defendant was selling their judgements at a lower price in the market. Which was created by them and hence they hold copyright on it. So, court held that such judgement by plaintiff has been created which ultimately depicts the creativity to create such judgements and, in its arrangements, as well. And hence, it required copyright.
SWEAT OF BROW: MEANING
When it comes to the UK doctrine of sweat and brow, which was the traditional approach was discussed under University of London Press Vs University Tutorial Press, in this case the defendant transcribed the questions and gave a defense of the nature of questions to be common and not unique to be copied. Those questions were created by the professors (plaintiff) of the University of London. So, court held that even though the questions were of general nature, the work should be constituted with creativity. This doctrine applies with a fair principle of hard work and labour put up by any person in his work in any field. It doesn’t focus upon how creative the work looks but believes in the hard work behind every work. This principle has evolved over time. In International News Service Vs Associated Press, the court criticized the idea of copying the advertisement for earning economic benefit. For example, a musician collected different compositions from different musicians and together formed one composition. Then in that case his labour will matter more than creativity as per sweat of the brow principle.
MODICUM OF CREATIVITY: MEANING
On the parallel hand, the US approach of modicum of creativity believes on the modern concept of a bare minimum creativeness by the author to create an illusion of originality in any work.This has been seen in Feist Publications Vs Rural Telephone. In this case, the rural telephone had a directory of its services of telecommunication in rural area. But the Fiest company is to get a license for usage of directory. But the telephone company refused, and hence Fiest publications copied the directory. And it was discovered after investigation that the directory does not constitute any copyright infringement since collection of data is not a unique in its sense and hence the purpose of the Fiest company was to analyze the present data to make necessary changes which is a part of creativity. With creativity there is always a market value attached by the work as mentioned by university of oxford, it is a way to not only distinct our work but also to stand out in the market due to the mental phenomenon showed by the author to think out of the box. For example, A musician created a new composition by his own which was seperate from the market trend, in this case the musician showed his creativity in establishment of the music.
SWEAT OF BROW Vs MODICUM OF CREATIVITY
As in this fast-evolving world, nothing is permanent and hence requires changes from time to time. Similarly, different approaches have been applied by different countries. It is because the work cannot soley rely on hard work as work sometimes when done with hard work can be erroneous and flaws could be seen. It acts as an outdated version with no discovery seen in it. But also, on the same hand hard work is attached with time dedicated to that work. And on the other hand, creativity not only symbolizes the intellect of a person has but also helps in broadening the approach of perceiving. Both approaches differ significantly. But India believes in labour with less creativity in case of copyright.
In case Rupendra Kashyap Vs Jeevan Publishing House Pvt. Ltd. He plaintiff and one of the defendant claimed to have license of the question papers of cbse with the plaintiff. But the defendants tried to combat those papers and publish them for public utilization for the purpose of research and academics. So, in this case court held that on the mere ground of “Public Interest” copyright infringement has not been there. Since agreement made between the plaintiff and cbse has not given the authenticity to the author. And hence, there was no infringement by the defendants by publishing them and printing them into books.
Similarly, in case Amarnath Sehgal Vs Union of India the mural which was recognized and kept in Vigyan Bhawan was pulled down. And such an act was done without the permission of its author, which ultimately harmed his reputation. He talked about his moral right infringement. A question of time barred also came in question in this case as it was crossing almost twelve years from the date of its installation date. So, the plaintiff stated that he was in continuous process to plea for this to the court for such twelve years. The ruling in this case exhaustively stated the several rights which are available with the author related to his work.
CRITICISM OF “SWEAT OF BROW”
On the “Sweat of the Brow” principle we cannot rely always. As work of all creativity requires hard work, but work all hard work and labour does not include creativity.It means that a work when is completed with labour, time and skill may not necessarily includes creativity in it as it may have been collected from the available resources but the creative work will always be done with hardwork and dedication put up by the author. Creativity comes from within an individual. As in the case of Fiest Publication Vs Rural Telephone, the court criticized the idea of labour behind any work. And believed the little creativeness in the work to be there.
Facts: – Rural telephone certified company had the directory of the contacts with names of the people residing in that area on white yellow pages. Yellow pages were generally emphasized for advertisements. Such directories were for economic purposes. The defendant, who was a publication company, tended to enter the telecommunication business and asked the plaintiff to provide them with the license for the directory job. But the plaintiff refused to provide such a license to the defendant’s company. And claimed it to be certified by him and for holding copyright onto it. So, the defendant filed a case for no reason of copying the directory as it cannot be copied.
Issues Raised: –
i) Can the copyright be put upon the directory?
Answering this question, it was a denial by the supreme court stating that as demand of white page by the defendants it consists of general information of the subscribers other than the yellow page which was related to monetary purpose. So such directory doesn’t consist of the copyright infringement.
ii)What significance does originality include in copyright act?
This question was answered in context of the constitution and explicitly defines “originality” to be a work attached with skill in accordance with a minimal skill.
iii) Can doctrine of sweat of the brow alone be relied for copyright?
No, the supreme court stated that sweat of brow principle alone cannot be relied for copyright as its content alone is not enough for infringement.
iv) What is the extent of copyright?
In this court, emphasized the word “original” which includes the labour in consonance with the creativeness.
Judgement: – The court clearly stated that the originality is defined under copyright as no matter if the work has another replica it doesnot lead to infringement. And also, the work should inculcate some creativity. In this case, the principle of Modicum of Creativity was established and the importance of creativeness was considered an important aspect in the scenario of the work of an author. With this test, the court stated that the white page of the directory which included the general information related to public and hence it cannot be copied. And hence the judgement was in the favor of the Fiest company.
MY OBSERVATION
According to me, the copyright is a fundamental right which is applied on the work of every individual. It not only acts as a protective layer for the authors but also gives new concepts to the society by shielding their creativity. The originality as a concept is rightly developed to preserve the work of the authors other than the facts or other generic statements and applying copyright on it.The basic idea behind both the principle “Sweat of the Brow” and “Modicum of Creativity” is to preserve the originality of the work.According to me if we compare both the doctrines both have their own pros and cons.
But I believe that all the work done with hard work cannot include creativity but, all work done with creativeness includes hard work. There is no uniform or structured way through which we could determine the accuracy of these principles. As the sweat of the brow believes hard work to be superior in a work on the other hand, the modicum of creativity puts creativeness to be prominent. But India adopted a balance approach of this.
As India believes the work should have labour, skill and hardwork by the author but that should be done in connection with minimal creativity to authenticate the copyright on such work. Creativity is an expression of the author which when replicated, the whole validity of the work comes in question. After analyzing several cases it was noted that the originality is not destroyed on the mare basis that the general information is used for personal benifit of the work of one author by the other.
As seen in both the above cases of Amarnath Sehgal and Fiest Publication, as it can be used by adding creativity for other purposes. Copyright does not marely focus upon how creative the work is or how much creativity is depicted by the author, but it also signifies the requirement of such creativity. Moreover, there can be no exception to public utility for copying a work.
CONCLUSION
Originality has evolved through various precedents and interpretations by various countries. There is no uniform or structured way through which we could determine the accuracy of this principle. The copyright is not a proper way through which we could prevent infringement. Also, it creates complexities in differing from the portion of work as certified and what is not. Even though the Indian courts have adopted the blend form of the doctrine with skill and creativity. But it does not clearly define how much quantum of creativity is necessary for the work to be categorized in the form of ‘original work’. Creativity helps in adding a distinguishable variation. In India, it is believed that the law of India should not contain novelty. The Indian legal system does not entirely believe in US approach or UK approach doctrine, they have given recognition to both of them and adopted the blend approach for smooth functioning.As in their understanding, the idea behind it is to maintain hardwork in context with the creativity. That means they believe in both physical as well as intellect brainstorming.
But as the world is growing rapidly, the compliance of present laws may no longer have duration seen in the upcoming years. The technology will create a flaw in the originality of the work. For which we require strict laws and its compliance to safeguard the work.
